Spear v. State

• Decision Date: 21 December 1931
• Docket Number: 71
• Citation: 44 S.W.2d 663,184 Ark. 1047
• Parties: SPEAR v. STATE
• Court: Arkansas Supreme Court

44 S.W.2d 663

184 Ark. 1047

SPEAR v. STATE

No. 71

Supreme Court of Arkansas

December 21, 1931

Appeal from Crawford Circuit Court; J. O. Kincannon, Judge affirmed.

Judgment affirmed.

Hardin & Barton, for appellant.

Hal L. Norwood, Attorney General, and Robert F Smith, Assistant, for appellee.

OPINION

BUTLER, J.

Between 8 and 9 o'clock on the night of January 28, 1931, three masked men appeared at the Reynolds Drug Store in the northeast section of the town on Van Buren in an automobile. Two of these men entered the drug store, and the third, described by witnesses as a very tall man, stood on the outside near the curb where the car was parked. All three were armed with pistols and masked, and the two who entered the store proceeded to rob it. While the robbery was going on a young man named Brown, accompanied by a young lady, parked his car on the opposite side of the street from the drug store and, observing what was occurring, took his pistol from the pocket of the car and ran across the street in the direction of the drug store and opened fire upon the man standing on the outside. In an interchange of shots between the two Brown was killed. The two men in the drug store had completed the robbery, and the three immediately left and made their escape, the one on the outside leaving in the car, the other two on foot.

At the March term, 1931, of the Crawford Circuit Court following the robbery an indictment was returned by the grand jury charging the appellant, Percy Spear in common-law form with having, on the date aforesaid with malice aforethought and after deliberation and premeditation, killed Elmo Brown by shooting him with a gun, etc. When the case was called for trial, the defendant filed his motion for a change of venue on the ground that the minds of the inhabitants of Crawford County were so prejudiced against him that he could not get a fair and impartial trial in said county. This petition was supported, by the affidavits of 15 or 16 persons. The motion was overruled by the court, and proper exceptions were saved to the action of the court. After a demurrer had been interposed to the indictment, which demurrer was overruled, the defendant was duly arrainged and the case tried before a jury, and the trial resulted in the conviction of the defendant for the crime of murder in the second degree, with punishment fixed at imprisonment in the State penitentiary for a period of twenty-one years.

1. It is first insisted on appeal that the court erred in overruling the motion for the change of venue, the contention being that the examination of those who signed the supporting affidavits disclosed the state of mind of the inhabitants of the county as alleged, and that their examination showed that they were credible persons within the meaning of the statute. After a careful consideration of the testimony of these affiants, we cannot say that the trial court abused its discretion in denying the petition. There were ten affiants examined at length, which testimony requires fifty-eight pages of the transcript to record it. It would be impracticable to set out this testimony, but we have carefully read, not only the examination of the affiants abstracted by the appellant, but that of the others as well, and we conclude that their opinion was based on insufficient information. It was formed largely from gossip on the streets of Van Buren and by the expression of opinion of a few persons from some of the outlying townships, and the prejudice, if any, existing in the minds of the people appears to have been more against the crime itself than the individual accused of having committed it. It naturally aroused great feeling and resentment in the minds of all who heard it and an earnest desire that the guilty person, whoever he might be, should be punished. Some of the prejudice appears to have been directed more against the sheriff than against any one else, but this seems to have been entertained by only a very few.

The county contained 37 townships and several thousand qualified electors, and none of the affiants testified as to any prejudice except in a few of these townships and as to a limited number of people. It was not shown that the jury was drawn from that part of the county where the prejudice existed, and we must indulge the presumption that the court endeavored to secure jurors who were unaffected by passion and without prejudice to the defendant. As is held in Spurgeon v. State, 160 Ark. 112, 254 S.W. 376, called to our attention by the appellant. "There is a presumption as to the credibility of supporting affiants which must be overcome before the affidavits can be disregarded." But in the conduct of a criminal case a wide latitude must necessarily be given the trial judge in passing upon questions of this kind, and it must always be assumed that his rulings are based upon a fair and impartial consideration of the questions before him, and his decision ought not to be disturbed unless it clearly appears that his action is arbitrary. He is not obliged to conform to the opinions of the affiants where it appears that those opinions are formed upon no substantial basis.

We have not overlooked the supplemental typewritten brief filed by the appellant or the suggestion that the original transcript fails to show the evidence of a number of persons at the hearing of the petition, nor the argument that, as the presumption of credibility attaches to the affiant, it must be presumed that these persons were credible within the meaning of the statute, and that therefore the prayer of the petition ought to have been granted. The answer to this is that the statute requires the supporting affidavit to be made by two credible persons having the requirements mentioned, and, while it is silent as to the number in excess of two who may affirm the truth of the petition, the court is not required to examine an indefinite number. Here ten were examined at length, and it was the privilege of the defendant to present those of the affiants whom he believed to be most thoroughly acquainted with the sentiment of the minds of the inhabitants of the county for examination by the court, and the record should affirmatively show that these witnesses were presented and their examination refused. The mere suggestion that their examination was not incorporated in the transcript and impliedly that it was not made is not sufficient.

2. It is next urged that the court erred in refusing to excuse certain jurors for cause and excusing others. A juror, being examined as to his qualifications, in answer to questions stated, in effect, that, if the facts he had heard were true, it would tend to establish an opinion in his mind, and that at the time of the examination he had an opinion regarding the guilt or innocence of the defendant which it would take evidence to remove, if what he had heard was proved to be true. The question was, "You have an opinion," and the answer, "Yes, if what I heard is true, I have an opinion." Answering further a question of the court, he said that he thought he could disregard the opinion and try the man as fairly and impartially as if he had not heard of the case. From the record of his examination, it is obvious that this opinion was not formed from any statement he had heard made by witnesses in the case, but from newspaper accounts and general discussion. The opinion was therefore based upon rumor. Counsel for appellant say that under the authority of McGough v. State, 113 Ark. 301, 167 S.W. 857, this was a disqualification and ground for the excusal of the juror for cause. Counsel misinterpret the rule stated in that case. There the rule stated was that the entertainment of preconceived opinions about the merits of a criminal case renders a juror prima facie incompetent, but, where it is shown that the opinion was founded on rumor not of a nature to influence the verdict of the juror, he is qualified. It may happen that the examination of the juror will disclose a fixed opinion, although based upon rumor only. Then, of course, the prospective juror cannot be disinterested or unbiased, and is therefore disqualified. But where he is able to say that he can disregard the opinion, and give to the evidence a fair consideration, and from that reach his conclusion as to the guilt or innocence of the defendant, he is not disqualified. We think this is the purport of the statement made by the juror, and that the court correctly held him qualified. It may be said, moreover, that no prejudice has been shown by the ruling of the court. The abstract does not show the disposition made of the juror, whether he was taken or peremptorily challenged by the defendant, or that he was forced to exhaust his challenges because of the court's action.

Two of the jurors were excused for cause by the court because they announced that they were opposed to capital punishment, and another because it appeared that he was one of the signers of the supporting affidavits on defendant's petition for change of venue, although the juror stated on his voir dire that he had no interest in the case and was unacquainted with the facts. We are committed to the rule that in the conduct of a trial the trial court is clothed with wide discretion, and necessarily so, for the proper and expeditious dispatch of its business, and that this court will not interfere with the action of the trial court where there is no violation of some mandatory provision of the law or unless it is shown to have operated to the prejudice of the party complaining. Mabry v. State, 50 Ark. 492, 8 S.W. 823; Pate v. State, 152 Ark. 553, 239 S.W. 27; Sullivan v. State, 163 Ark. 11, 258 S.W. 643. As is said in Rose v. State, 178 Ark. 980, 13 S.W.2d 25: "Appellant was not...